Shawn K. Faguy

The appellant entered into a contract with the respondent for the storage of vaccines in a temperature-controlled warehouse.

The contract required the appellant to maintain all-risk property insurance.

After the cooling system malfunctioned and destroyed the vaccines, the appellant's insurer brought a subrogated action against the respondent and other contractors involved in the warehouse's operations.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurance covenant barred the claim against the respondent (except for a $100,000 negligence carve-out) and that the other contractors were third-party beneficiaries of this protection.

The appellant appealed a summary judgment dismissing its claims.

The underlying dispute involved a subrogated claim by the appellant's insurer against the respondents, who were contractors on a diamond mine project.

The Court of Appeal dismissed the appeal, finding that the contracts required the appellant to obtain insurance for the benefit of its contractors and included a waiver of subrogation.

Applying principles of contract interpretation, the court held that the appellant had waived liability for losses covered by the policy, thereby extinguishing the insurer's right of subrogation.

Following summary judgment dismissing the plaintiff’s claim against all defendants, the court addressed supplementary costs submissions from a defendant who did not participate in the summary judgment motion and from several third parties added to the litigation by defendants.

The court reviewed the discretionary framework for costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

While plaintiffs are generally not liable for costs incurred by third parties, the court noted that such costs may be ordered where the third party proceedings flowed naturally from the plaintiff’s claim.

The court awarded the non‑participating defendant partial indemnity costs and exercised its discretion to award approximately half of the third parties’ requested costs against the plaintiff.

Following dismissal of a complex multi‑party action on summary judgment, the successful defendants sought costs of the entire action in addition to agreed costs of the summary judgment motion.

The plaintiff argued that costs submissions should be limited to the motion and that delay in bringing the motion inflated the defendants’ legal fees.

The court held that where summary judgment disposes of the entire action, the court may fix costs of the entire proceeding, treating the motion similarly to a trial judgment.

Applying the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the defendants’ claimed partial‑indemnity costs by 25% to align with what would have been the plaintiff’s reasonable expectations in a large and technically complex case.

The plaintiff pharmaceutical company stored vaccines with a logistics provider under a master services agreement requiring the plaintiff to obtain all‑risk property insurance covering the stored goods and naming the warehouse operator as an additional insured.

After a refrigeration malfunction allegedly rendered the vaccines unsellable, the plaintiff commenced a subrogated action against the warehouse operator and various contractors responsible for the cooling and monitoring system.

The defendants moved for summary judgment dismissing the claim.

The court held that the covenant to insure constituted an allocation of risk whereby the plaintiff assumed the risk of loss to the goods and thereby barred tort claims against the warehouse operator for that loss.

The court further held that the covenant extended to contractors and related parties with an identity of interest in the performance of the contract.

Summary judgment was granted dismissing the action and all cross‑claims.

The Court of Appeal issued a costs endorsement following an appeal.

The appellant was ordered to pay the respondent's costs fixed in the amount of $15,000, all inclusive.

The appellant, a shipping agent, was sued in Ontario for the loss of cargo stolen from a Quebec warehouse.

The appellant brought a third-party claim against the Quebec warehouse operator.

The motion judge stayed the third-party claim for lack of jurisdiction.

On appeal, the appellant argued that the existence of a proper third-party claim under Rule 29 should be recognized as a new presumptive connecting factor under the Van Breda framework.

The Court of Appeal dismissed the appeal, holding that a third-party claim without a factual connection to Ontario does not establish a real and substantial connection to assume jurisdiction over a foreign party.